1994 PLP 2145 (MLD)

Fundamental legal point for decision in the Execution Second Appeal No.763 of 1972 was, whether the execution of decree passed in the suit for possession by redemption of a shop at Sialkot on 12-2-1948, by a Civil Court was barred by Limitation as was held in the lower Courts. Facts relevant for decision of the point briefly set out were these:

Shop No.218 in Bazar Kanak Mandi of Sialkot City was in the ownership of Ghulam Sarwar and his three brothers, namely, Ghulam Hazoor, Ghulam Hussain and Naseer Hussain sons of Ghulam Mohy-ud-Din. By a deed registered on 2-9-1905, it was mortgaged by them to Seth Ghasita Mal for the mortgage money of Rs.800. On 18-2-1947, the mortgagors instituted a civil suit against successors of original mortgagees for redemption of the mortgage free from payment of the mortgage money and possession of the shop from the A few of the mortgagees were served in the suit for redemption. They filed their written statements also. Rest of the defendants were not served. Eventually, unserved defendants were served by affixation of the summonseon outer doors of their residences. Since they failed to appear and service upon them was considered sufficient by the trial Court, it proceeded against them ex parte, on 11-11-1947, and adjourned the suit for taking of ex parte proof from the plaintiffs, on 26-11-1947. Plaintiffs gave evidence in ex parte proceedings and the suit for redemption free from payment of mortgage money was eventually decreed in their favour, on 12-2-1948. Prior to it, sub-continent of India was divided into two sovereign dominions and the non-Muslim defendants had migrated to the territories falling in Indian Dominion. They, therefore, attained the status of evacuees. The decree-holders sued out execution of the redemption decree in their favour in a Civil Court at Sialkot. Ghulam Hussain resisted delivery of possession of the shop in execution of the decree on the ground of its allotment to him. Presumably, an objection was raised that the shop was an evacuee property and jurisdiction of the Court was objected to on its score. Execution Court stayed further proceedings and referred the matter to the Deputy Custodian of Evacuee Property for determination of the dispute under section 34(2) of Pakistan (Administration of Evacuee Property) Ordinance, XV of 1949. The point referred to was, "Whether the shop in dispute is an evacuee property belonging to Kirpa Ram and other evacuees, and whether they had any interest in it. The precise date of reference by the Civil Court to the Deputy Custodian of Evacuee Property was not visible on present record. However, the record showed that matter came up before D.C.E.P. on 22-6-i951 for notice to the parties interested in the property, namely, the allottees. On 23-5-1956, the Deputy Custodian found that the mortgage had been redeemed and the evacuees had no interest in it. Ghulam Hussain preferred a revision from the order before Custodian of Evacuee Property. Mr. Masood Ahmad, Custodian, Evacuee Property, West Pakistan, Lahore vide his decision dated 10-8-1959 found that Ghulam Sarwar and his brothers were not owners of the property in dispute and, therefore, were not entitled to get it redeemed. The reference was accordingly ordered to be returned to the Civil Court. Owners of the shop applied for Leave to Appeal to the Supreme Court of Pakistan. Leave was allowed by the Supreme Court and the matter was heard in Civil Appeal No.10 of 1961 by their Lordships of the Supreme Court. On 2-10-1961, the appeal was allowed by the Supreme Court and the case was sent back to the learned Custodian for disposal in accordance with provisions of section 43 of Act, XII of 1957. Upon remand, Mr. A.R Changez, the then Custodian of Evacuee Property West Pakistan, on 16-2-1963, concurred with the Deputy Custodian' of Evacuee Property and dismissed the revision application filed by Ghulam Hussain. The result was that decree for redemption of the mortgage respecting the shop in question was upheld and maintained. By this time, it was finally resolved that no evacuee interests were involved in the property and it was rightly redeemed free of mortgage money by the Civil Court. First execution petition was filed in the Civil Court on 1-3-1948. Presumably, it did not fructify and was dismissed on 1-3-1948. Second application followed on 20-11-1950. It was consigned on 16.7-1951 in that the decree-holder had failed to give particulars of the shop in dispute. This execution application was numbered as

77. An application for its revival was filed by the decree-holders. It was dismissed for default in appearance on 1-6-1963. A fresh application for execution was then filed on 6-3-1964. It was also dismissed on 8-5-1964. Yet another application for execution was filed on 29-7-1964. It was shown to have been dismissed on 16-4-1965 on the statement of the decree-holders that they did not intend to pursue it. Thereupon, an application under section 151, Civil P. C. for restoration of Execution Application No. 77 of 1950 was instituted, on 16-4-1965. It was dismissed for default in appearance on 1-12-1967. Yet another miscellaneous application under section 151, Civil P,C. was filed by the decree-holders on 2-12-1967. During the pendency of this application, another execution application was submitted by the decree-holders on 4-12-1967. Both these applications were dismissed on 8-3-1968 on the statement of the decree-holders that they did not intend to pursue the said applications. On 8-6-1968, the decree-holders filed a new execution application. Ghulam Hussain objected to the execution of the decree. Number of issues were settled by the Execution Court for decision of controversial points between the decree-holders and the objector. These were:

(1) Whether the execution application is within time? O.D.H. (2) Whether the mortgage in favour of Ghasita Mal has been validly redeemed, when the decree is against Kirpa Ram? O.D.H. (3) Whether the previous number of Shop No.8/65 was 218 in 1905? O.D.H. (4) What are numbers of the shops in possession of the objector and whether the same have been validly transferred to him by the Settlement Department? If so, what is its effect? (5) Whether the Custodian has already decided issues Nos.2 and 3 in favour of the decree-holders? If so, what is its effect? O.D.H. (6) Whether the decisions taken by the Custodian are with authority and jurisdiction? If so, to what extent? O.D.H. (7) Whether the objector, has locus standi to raise the objection? O.O. (8) Whether the objector is estopped from filing the objection petition? O.D.H. (9) Whether this Court has no jurisdiction to decide the objections? O.D.H. (10) Whether the objection petition is barred by res judicata? O.D.H. Execution Court took up Issue No.1 first; held that execution was barred by limitation and consequently, dismissed it on 20-12-1969. It said: "It was for the decree-holder to prove that the inner limitation of three years was maintained between successive applications and the outer limitation of 12 years prescribed by section 48, C.P.C. was also maintained. The decree was passed on 12-2-1948 and the last application for execution was filed on 8-6-1968, which is obviously beyond 12 years. I, therefore, hold that the execution application is time-barred". Under issues Nos. 2 to 10, the Execution Court found that it had no jurisdiction to decide the objections in respect of competency of the Custodian to pass order with regard to the nature of the disputed property and also in respect of number of disputed shop, and, therefore, it refrained from giving any finding on them. It may be observed that the shop in question was allotted to Ghulam Hussain on 25-1-1951 and a P.T.O. for it was also issued in his favour on 28-10-1959. He was in possession of the shop. Decree-holders preferred an appeal from the judgment of the Execution Court against them. It was heard by a learned Additional District Judge, who endorsed the decision in appeal on 29-3-1972. He merely dittoed the decision of the Execution Court without much adding to it from his own. Thereupon, this second appeal was filed in this Court. It was admitted to hearing on 18-12-1972. Facts of the case were a little involved. It should be so because the case had a long history behind it. I have taken various dates of events enumerated above from the orders passed in execution by the lower Courts and facts were extracted from the available records. Complete record showing filing of various applications for execution of the decree and the orders passed on them was not available to me. Learned counsel for the appellants was similarly handicapped. He too had to rely on the present record. It was an old appeal of 1972. Naturally, it was fraught with such like impediments. Ghulam Hussain was dead. His son

Sheraz Akhtar was substituted for him on record by an order of the Court. He was served in person. Intimation through P.C./A.D. was sent to him for today's date of hearing. He failed to respond. In this state of proceedings, I have had not the advantage of hearing from the contesting respondent. As said above, decree for redemption of the mortgage was passed on 12-2-1948 by the trial Court. Suit for it was instituted on 18-2-1947. Migration of the evacuees created complex problem of representation in Court. Date of first filing of application for execution of the decree was not available on record. Similarly, the precise date for reference to Deputy Custodian of Evacuee Property was also not available. The record showed that reference was fixed before the Deputy Custodian on 22-6-1951 Date of reference, therefore, must have preceded it. From the date of reference to the date of final decision by Custodian of Evacuee Property West Pakistan on 16-2-1963, the matter lay in suspense. Reference to Deputy custodian by the Civil Court was necessitated under subsection (2) of section 34 of Pakistan (Administration of Evacuee Property) Ordinance, 1949 (ordinance XV of 1949). Subsection (2) runs as: "Whenever any question such as is referred to in clause (a) of subsection (1) arises in any civil or Revenue Court, the Court shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive". Succeeding subsection (3) of section 34 provides: "No decision of any Court on any question such as is referred to in clause (a) of subsection (1), given between the fourteenth day of August, 1947, and the commencement of this Ordinance, shall be binding on the Custodian, or affect any right or interest of any evacuee in any property affected by such decision". With little variations, section 41 of Pakistan (Administration Evacuee Property) Act, 1957 (Act XII of 1957) was a parallel provision. In terms of subsection (2) of section 34 of Ordinance XV of 1949 repeated similarly in corresponding subsection of section 41 of Act XII of 1957. On reference to the Custodian, proceedings in which the question arose were required to be adjourned till the final, decision of the Custodian on the question stated to him for decision. On 'present record, it was not known, whether the proceedings were adjourned or stayed on reference of the question of evacuee character of property for decision to the Custodian. Effect of subsection (2) of section 34 of the aforenoticed Ordinance as also the corresponding provision of section 41 of Act XII of 1.957 was not examined by the learned Courts below qua the period of limitation applicable to the execution of the decree. The precise question . for consideration would be whether the period from reference to final decision by the Custodian shall be suspended for purposes of limitation for execution of the decree. Subsection (3) of section 41 of Act XII of 1957 in its language was different from subsection (3) of section 34 of the Ordinance XV of 1949. Decree could not be effective, unless it was accepted or approved by the Custodian. Outer limit for execution of the decree was 12 years prior to amendment of section 48, civil P.C. by Ordinance XII of 1972 which reduced it to six years. Article 182 of Limitation Act dealt with inner limits for revival of execution application within three years. Article 182 was repealed by Ordinance XII of 1972, commonly known as Law Reforms Ordinance, 1972. From the date of its repeal on 13th of April, 1972, inner limits fixed by it may not apply. These abstruse questions of law were not examined by the learned Courts below qua the period of limitation applicable to the decree of the Civil Court passed on 12-2-1948 and finally approved or accepted by the Custodian of Evacuee Property West Pakistan on 16=2-1963. It is common law that act of Court could prejudice none. Likewise, an act performed under compulsive requirement of a Statute dealing with special interests could not have prejudiced the decree-holders. Reference to the Custodian of Evacuee Property was necessitated by a Statute. Furthermore, the effect of dismissals in default of the applications for execution qua time-frame did not appear to have been examined in depth by the learned Courts below. Learned counsel for the appellants referred to few cases, i.e. Nagendra Nath Dey and another v. Suresh Chandra Dey and others AIR 1932 PC 165; Rango Ramacharya Katti v. Gopal Narayan Kulkarni AIR 1939 Bom. 75; Muhammad Umar Khan v. Muqarrab Khan and another pLD 1976 Pesh. 43 and Mirza Akbar Ali v. National Bank of Pakistan 1985 SCMR 190 to support his proposition that execution of decree was not time-barred Since the substance of the matter was not examined in depth and also in its true perspective in the two Courts below and I have had not the advantage of a considered opinion on important issues of law arising for decision here, I shall refrain from examining them in absence of complete record and hearing of the contesting respondent, namely, the legal heir of deceased Ghulam Hussain. The natural corollary of it would be that the matter shall be remitted for a fuller examination of all the relevant issues touching on point of limitation by learned District Judge, Sialkot who shall endeavour to take hold of complete relevant records of case files for decision of the appeal by him inasmuch a short time as was humanly possible for him. The matter was fairly old and had its own peculiar features. It required early judicial attention. As a result of the above, second appeal is allowed, impugned judgment of learned Additional District Judge, Sialkot is set aside and the case is remanded to learned District Judge, Sialkot for rehearing and decision afresh on merits of the appeal preferred by the appellants in accordance with law. Since the respondent failed to enter appearance, I shall make no order as to costs in this Court. Records shall be returned. A.A./N-263/L Case remanded.